Noonan Services Group Ltd (Represented by Management Support Services) v Dureza Sumayao

• Jurisdiction: Ireland
• Judgment Date: 13 December 2022
• Judgment citation (vLex): [2022] 12 JIEC 1302
• Docket Number: FULL RECOMMENDATION ADJ-00014745 CA-00018937-005 DETERMINATION NO. TUD229 SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003
• Court: Labour Court (Ireland)

PARTIES:

Noonan Services Group Ltd (Represented by Management Support Services)

and

Dureza Sumayao

FULL RECOMMENDATION

TU/20/19

ADJ-00014745 CA-00018937-005

DETERMINATION NO. TUD229

SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003

Full Court

DIVISION:

Chairman: Mr Foley

Employer Member: Mr Marie

Worker Member: Ms Tanham

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision No. ADJ-00014745 CA-00018937-005

BACKGROUND:

2 2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 17 January 2020. A Labour Court hearing took place on 6 December 2022. The following is the Determination of the Court:

DETERMINATION:

3 This matter comes before the Court as an appeal by Noonan Services Group Ltd (the Appellant) of a decision of an Adjudication Officer given under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (the Regulations) in a complaint made by Ms Dureza Sumayao (the Complainant).

4 The Complainant communicated with the Court by ‘phone and e-mail shortly before the hearing of the Court to advise that she would not be attending the hearing. She proffered no reason for her non-attendance and did not seek a postponement or any change to the arrangements made to hear the appeal. She had earlier provided the Court with a written submission in advance of the hearing.

Summary position of the Complainant as set out in her written submission

5 The Complainant submitted that she had been employed in her role by a previous employer until October 2010 when her employment transferred to the Appellant under a Transfer of Undertakings within the meaning of the Regulations.

6 She contended that prior to her transfer she had received pay increases consistent with increases made to the statutory minimum rate set out in a series of Employment Regulation Orders (EROs) enacted during her employment. She submitted that these increases were applied to her rate of pay notwithstanding her rate of pay at all times prior to the transfer exceeded the minimum statutory rates of pay set out in successive EROs.

7 She submitted that her rate of pay at the date of transfer was €10.98 per hour and remained so at the date of her complaint made on 4 ^th May 2018.

8 She submitted that the failure of the Appellant to increase her rate of pay when ERO's were enacted since 2010 amounted to a breach of the Regulations.

9 The...